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Court of AppealDismissedNotice of Motion dated 8th February 2024 (Civil Application, Malindi)

Kambi & 3 others v Chome & 9 others (Civil Application E004 of 2024) [2024] KECA 738 (KLR)

Court of Appeal of Kenya
21 June 2024
KLK. I. Laibuta
1,245 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because land under adjudication must be handled through the adjudication process, not the Environment and Land Court.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Malindi (Laibuta, JA) on a Notice of Motion dated 8th February 2024 seeking extension of time under rule 4 of the Court of Appeal Rules to file a memorandum and record of appeal from the Environment and Land Court at Malindi (Odeny, J.), which on 30th January 2023 dismissed the applicants' suit and the respondents' counterclaim for want of jurisdiction over land subject to adjudication under the Adjudication Act (Cap. 284). The applicants argued that delay was occasioned by delivery of judgment without notice, delayed typing of proceedings, and counsel's maternity leave, and that the intended appeal was arguable. The respondents did not respond. The court restated the four Leo Sila Mutiso factors for extension of time and the threshold that an applicant need only show an arguable appeal, not one that must succeed. Considering section 13 of the Environment and Land Court Act, the court found the applicants had failed the first hurdle: the suit, counterclaim and intended appeal went against the law and procedure governing land adjudication. The Motion was dismissed with no order as to costs. The decision does not disturb the ELC's judgment; it simply denies the applicants leave to prosecute an appeal. It binds no court beyond the parties' application but reiterates the established rule 4 framework for lower courts and future applications.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted extension of time under rule 4 of the Court of Appeal Rules to file a memorandum and record of appeal
  2. 2.Whether the applicants demonstrated an arguable appeal with likelihood of success, in particular whether the ELC has jurisdiction over disputes arising from land adjudication

Key legal issues

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01

Factors for extension of time under rule 4

Holding

The court applies the four Leo Sila Mutiso factors: length of delay, reason for delay, chances of success, and prejudice to the respondent; the discretion is unfettered.

Reasoning

The court reiterated the classic rule 4 framework. The discretion is broad and not confined to the enumerated factors, so long as any additional factors are relevant. The applicant bears the burden of satisfying the threshold considerations before the discretion is exercised in their favour.

p. 2
02

Whether the intended appeal was arguable - ELC jurisdiction over land adjudication disputes

Holding

The intended appeal lacked arguability because the suit and counterclaim, dealing with land under adjudication under the Adjudication Act (Cap. 284), went against the grain of the law and procedure in land adjudication.

Reasoning

The ELC had dismissed the suit and counterclaim for want of jurisdiction over land subject to adjudication under Cap. 284. The court considered section 13 of the Environment and Land Court Act but concluded the applicants' intended appeal, which challenged the preceding Tribunal and Committee decisions via a fresh suit, was unmerited, and declined to consider the remaining rule 4 factors.

p. 3

Legal principles established

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  • Extension of time under rule 4 is discretionary and governed by the factors in Leo Sila Mutiso v Helen Wangari Mwangi; an applicant must first demonstrate an arguable appeal with likelihood of success.
  • On the merits threshold for extension of time, it suffices to show an arguable appeal, not one that must succeed.

Court orders

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  1. 1.The applicants' Motion for extension of time under rule 4 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

KL
majority

Wrote the judgment

On appeal from
Environment and Land Court at Malindi
ELC Case No. 54 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to file memorandum and record of appeal

The applicants failed to demonstrate an arguable appeal; the suit and intended appeal go against the law and procedure on land adjudication

p. 3

Costs

No order as to costs - 'The same fails and is hereby dismissed with no order as to costs.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant.
p. 2Rule 4 discretion
it is suficient for the Applicant to demonstrate that he or she has an arguable appeal with the likelihood of success even though it is not one that must succeed
p. 3Arguability threshold
The same fails and is hereby dismissed with no order as to costs.
p. 4Disposition

Issues in the judgment

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minor

Typographical errors in the judgment, e.g. 'sufier', 'Sufice', 'efiectively', and 'the and pre-requisite first hurdle' appear garbled

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kambi & 3 others v Chome & 9 others (Civil Application E004 of 2024) [2024] KECA 738 (KLR)", Case Analysis (2024). Notice of Motion dated 8th February 2024 (Civil Application, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/738/eng@2024-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.